High Court rules that a provision of the 'reasonable mistake' defence in child sexual assault cases is unconstitutional
Ms Justice Siobhán Stack has determined that the 'reasonable mistake' defence as set out in S.3 of the Criminal Law (Sexual Offences) Act 2006 is unconstitutional due to the fact that it placed a legal burden on the accused which offended his right to a fair trial under Article 38.1 of the Constitution of Ireland 1937. It also had implications upon the accused's presumption of innocence by virtue of the fact that it allowed a person to be convicted of the crime even where there were reasonable doubts as to the age of the victim involved.
The offending piece of legislation was challenged by the plaintiff following his conviction for engaging in sexual acts with a child was was below the age of 17 years. The underage girl was, at the time, only 15 years and 10 months old whereas he was 19 years and four months old. He challenged the law on the basis that S.3(3) of the 2006 Act set out that it was a defence for a person to be 'reasonably mistaken' that a child had reached the age of 17 years at the time the incident took place but S.3(5) of the same Act provided that the standard of proof required for such a defence was that applicable to civil proceedings. This was agreed by all to have meant 'on the balance of probabilities'.
In simple terms, the qualification to the defence infringed upon the accused's Constitutional right to a fair trial because he could be convicted on the civil standard of proof which is a lower threshold, often synonymously referred to as a burden or standard of proof, than that required for criminal trials which is 'proof beyond a reasonable doubt'. The plaintiff also argued that this created a reverse onus provision which required him to essentially prove his own innocence in a criminal trial; something also repugnant to his right to a fair trial and presumption of innocence.
The State argued that the provision was an important protective measure for victims and highlighted how it was brought in following the landmark Irish Supreme Court case of C.C. v Ireland  4 IR 1 which created something of a Constitutional dilemma regarding sexual offences against children in Ireland. Furthermore, the Court considered at length the complex and technical role of legal v. evidential burdens in criminal trials and whether it was fair to require an accused to prove his own innocence. While it was acceptable to place an onus on the accused to adduce evidence of his 'reasonable mistake', it was not acceptable for that to become a legal burden of proof, the court said.
The position of the Court in the end can be effectively summed up in the following statement by the Court:
' The presumption of innocence is of such fundamental importance to the fairness of a trial that it is not subject to proportionate restriction as are individual rules of evidence relating to admissibility, the drawing of inferences or reverse onus provisions. ... Put simply, a trial which permits conviction where there is a reasonable doubt as to the guilt of the accused is not a fair trial.'
The court also stated: 'It is difficult to avoid the impression that subs. 5 was included simply to make it more likely to get a conviction' in child sexual assault cases.
The full case citation is: C.W. v. The Minister for Justice and Equality and Ors.  IEHC 336 and can be read on the Courts.ie website by clicking here.